United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on defendant's
motion for summary judgment [docket entry 5]. Plaintiff has
filed a response and defendant has filed a reply. Pursuant to
E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion
without a hearing.
has brought this action under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692.
She alleges that defendant, while attempting to collect a
debt on behalf of a client, violated her rights under the act
by using “false, deceptive, misleading, and unfair or
unconscionable means” and/or by “falsely
represent[ing] the character, amount, or legal status of any
debt.” Compl. ¶ 29. For relief, she seeks damages,
costs, and attorney fees.
material facts are undisputed. In 2011, defendant's
client, Cavalry Portfolio Services, obtained a default
judgment in the 63rd district court in Grand
Rapids, Michigan, against Jennifer R. McGrail, whose address
at that time was in Rockford, Michigan. Def.'s Ex. E.
Rockford is a small city located 14 miles north of Grand
Rapids. Defendant, upon learning from its client that a
person with this name, with an address in Grand Rapids, was
employed by Michigan Virtual Charter (“MVC”),
obtained a writ of garnishment from the 63rd
district court in 2016. Def.'s Ex. A.
defendant served MVC with this writ and the disclosure form
sometime in late 2016 or early 2017, as required by the
applicable court rule. Plaintiff alleges she learned of the writ
from MVC on March 24. Compl. ¶ 13.
March 27, 2017, plaintiff telephoned defendant and indicated
that “this is not her debt and we have the wrong
ssn.” Pl.'s Ex. A at 43. According to
defendant's notes, plaintiff indicated she “will
fax us her id and last 4 of the ssn, ” id. at
44, but she did not do so. Plaintiff alleges that she
“apprised Defendant of the last four digits of her
social security number” during this telephone call.
Compl. ¶ 21. Also on March 27, plaintiff filed
objections to the garnishment with the state court, asserting
that the writ was invalid because “I have never lived
at 5591 E DeBlaay Ct; my social security no. does NOT end
7397; I have never had a judgment from Calvary SPV; they
found the wrong Jennifer R McGrail.” Def.'s Ex. B.
The court scheduled a hearing on plaintiff's objections
for April 11. Id. Defendant also received a
telephone call from court personnel on March 27, indicating
“that the debtor on file called the court and gave
evidence showing that her social is different and has never
lived at the address in question. [C]ourt wants us to handle
this or they will hold a hearing on it.” Pl.'s Ex.
A at 44.
March 28, MVC completed a garnishee disclosure indicating
that withholding “will not begin immediately because .
. . the SS# or the address [illegible] this writ does not
match the EE we have at ¶ 12.” Def.'s Ex.
Defendant received this disclosure the same day. Pl.'s
Ex. A at 44. MVC also provided a copy of this garnishee
disclosure to plaintiff, as required by MCR 3.101(H).
Pl.'s Br. at 2. On April 4, defendant mailed plaintiff an
“ID Theft Affidavit” which, among other things,
requested plaintiff's name, birth date, and social
security number. Pl.'s Ex. D. Plaintiff did not return
this form or provide defendant with any of the requested
information. On April 7, defendant filed a response to
plaintiff's objections to the garnishment, stating that
she “has alleged this is fraud but failed to provide
[defendant] with supporting documentation in support of this
alleged claim” and that she “has failed to
substantiate the defect in the garnishment procedure,
therefore the objection is unfounded.” Pl.'s Ex. C.
On April 11, the parties appeared for the hearing, where,
according to defendant's notes, plaintiff
“confirm[ed] that she is in fact the wrong Jennifer R.
McGrail. Judge O'Hare signed the garnishment
release.” Pl.'s Ex. A at 46; see also
Def.'s Ex. D.
alleges that “Defendant's continued attempts to
collect the Debt from Plaintiff after Plaintiff had provided
information to Defendant to show she was not the debtor was
conduct that was both unfair and unconscionable” under
the FDCPA. Compl. ¶ 28. See also Pl.'s Br.
at 9 (“Defendant failed to abandon the Writ of
Garnishment after notice from Plaintiff, forcing Plaintiff to
file a formal objection to it.”); id. at 10
(“continuing to attempt to collect the debt . . . after
being notified of the error” violated the act). The
harm that plaintiff suffered, in addition to having to file
an objection to the writ, is limited to the fact that
“[o]n April 11, 2017, [she] was compelled to travel to
court to present her objection to the Writ and
Garnishment.” Id. ¶ 26. See also
Pl.'s Br. at 11 (“Defendant's collection
efforts compelled Plaintiff to file a formal objection to the
Writ of Garnishment and attend a hearing on that objection in
order to prevent her wages from being garnished.”).
alleges that defendant violated 15 U.S.C. § 1692e(2)(A)
by “[f]alsely represent[ing] the character, amount, or
legal status of any debt” and/or § 1692f by using
“unfair and/or unconscionable means to collect or
attempt to collect a debt.” Compl. ¶ 29. Viewing
the facts in the light most favorable to plaintiff, the Court
is persuaded that defendant is entitled to judgment as a
matter of law on these claims. Plaintiff does not allege that
defendant misrepresented the character of the debt (i.e.,
that it arose from a default judgment) or the amount of the
debt ($1, 557.20). Her claims that defendant misrepresented
the legal status of the debt (i.e., who owed it) or that
defendant used unfair or unconscionable means to collect or
to attempt to collect it fail because defendant neither
claimed that plaintiff owed the debt nor attempted to collect
the debt from plaintiff, but rather from a person whose name
happened to be the same as plaintiff's, down to the same
middle initial, and whose suspected address (in Rockford) was
near her last known address (in Grand Rapids). Plaintiff
acknowledges that “the Writ of Garnishment identified
an address and social security number that was not
Plaintiff's.” Pl.'s Br. at 2. The writ also
plainly showed the case name, the case number, the name and
address of the court, the amount of the original judgment
dated April 2011, and the fact that $824.58 in post-judgment
payments and credits had been made. These facts, taken
together, should have alerted even a “reasonable
unsophisticated consumer, ” Buchanan v. Northland
Grp., Inc., 776 F.3d 393, 396 (6th Cir. 2015), that
plaintiff was not the Jennifer R. McGrail to whom the writ
was understandably frustrated that defendant did not
immediately agree to withdraw the writ when, by telephone,
she informed defendant that her social security number and
address did not match those indicated on the writ. However,
plaintiff delayed the resolution of the error by failing to
provide defendant with evidence of her address and social
security number, either following her March 27 telephone
conversation or in response to defendant's request that
she complete an identify theft affidavit. Defendant could not
be expected to withdraw the writ (or to inform MVC that it
had been served with the writ in error) until it had evidence
that there was in fact an error to correct, and that evidence
did not come into defendant's possession until the April
11 hearing. As the parties note, defendant agreed to withdraw
the writ at that time, i.e., instantly upon being provided
with documentation that plaintiff was not the debtor. In
fact, defendant had no obligation to withdraw the writ, which
was and remains valid. The only error lay in defendant
serving the writ on MVC because, as it turned out, the debtor
is not employed there, a fact MVC recognized by informing
defendant (and plaintiff) that it would not withhold any
wages because the social security number and/or address of
Jennifer R. McGrail on the writ did not match those of the
Jennifer R. McGrail MVC employed.
these reasons, the Court concludes that the evidence fails to
show a triable issue as to whether defendant violated 15
U.S.C. § 1692e(2)(A) by “[f]alsely represent[ing]
the character, amount, or legal status of any debt”
and/or § 1692f by using “unfair and/or
unconscionable means to collect or attempt to collect a
debt.” Accordingly, IT IS ORDERED that defendant's
motion for summary judgment is granted.
FURTHER ORDERED that the other pending motions in this matter
are denied as moot.